I got into the office at six this morning, ready to knock off a post.  No Internet.  I call up the AT&T line, and after five minutes I’m finally routed to tech support, where some guy who sounds like he’s from the teeming subcontinent swears his name is Irvin, and that he will assist me, all the while abjectly apologizing for the inconvenience.  Mine or his, I’m not sure.  After doing some checks, he informs me that there are some technical issues with the line in the entire area of Cleveland, with an estimated repair time of 8:00 AM.  Which, of course, comes and goes, and to make a long and painful story short, the time was extended, first to noon, and then to 4:00 PM, so hopefully it’ll work tomorrow.  Maybe not.  At least it beats last week, when for some reason AT&T had decided that we’d canceled our account, and disconnected us. 

There were six decisions handed down by the US Supreme Court on Monday, all of them unanimous.  Which should tell you that none were of any consequence; the closest any of them came to that, at least as far as the people who are reading this are concerned, is Fry v. Pliler, which presented the issue of what standard of harmless error should be applied to constitutional violations on habeas corpus review.  The normal standard for determining the harmlessness of constitutional error is the Chapman test, that the error has to be harmless beyond a reasonable doubt.  Back in 1993, the Court had announced a different test for habeas claims:  the defendant had to show that the error had a “substantial and injurious effect” on the verdict.  In Pliler, the state court hadn’t even found constitutional error, but the Court held that the Federal courts still had to apply the stricter test.

The big news out of the Supreme Court was its decision to review a case on the disparity in the sentencing laws on crack and cocaine.  Federal law provides for a 100-1 disparity in sentencing on drug laws:  5 ounces of crack will get you the same sentence as 500 ounces of powder cocaine.  Those laws are reflected in the sentencing guidelines, of course, but the US Sentencing Commission recently issued a report which acknowledged that the disparity wasn’t justified.  (Sentencing Law and Policy has some excellent posts on this, including a link to the report.) 

Even before that, been a growing rebellion in the ranks of Federal judges over this, especially since Booker supposedly made the guidelines advisory instead of mandatory.  The 3rd Circuit held last year that a trial court erred when it held that it had no discretion to disregard the disparity and hand down a lower sentence than the guidelines provided, and the DC Circuit reached pretty much the same conclusion in February.  The 4th Circuit, though, recently overturned a sentence of 15 years (as opposed to the 19 years the guidelines would have provided), holding that a sentence was “presumptively unreasonable” when it was based solely on a disagreement with the disparate treatement the guidelines provide for crack and powder cocaine.  That’s the case the Supreme Court decided to review.

The Court also decided to review a case which replaced US v. Claiborne.  As I mentioned last week, Claiborne and US v. Rita were two cases in which the Court was going to expound on their decision in Booker:  in Rita, the question was whether a sentence within the guidelines was presumptively reasonable, and in Claiborne whether a sentence outside the guidelines was presumptively unreasonable.  Unfortunately, Claiborne went and got himself killed in a botched robbery a couple of weeks ago, mooting his case.  The decision in Rita is expected within the next week or so.  Unfortunately, the Court won’t be ruling on the crack/powder disparity and the Claiborne issue until next year, probably after January.